This article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia.

We begin by identifying several factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade, and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields.

We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Appeals court judges use dictionaries far less relative to legislative history than do the justices; moreover, we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. For legislative history, circuit courts use it regularly to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value.

For both dictionaries and legislative history, the courts of appeals’ eclectic approach differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the justices’ interaction with all their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis.

04/28/2016

...[T]he state of Nevada [has] filed an amicus brief I coauthored on behalf of Nevada itself and eight other state governments in Murr v. Wisconsin, a major property rights case currently before the Supreme Court. The case addresses an important question about when property owners are entitled to compensation under the Takings Clause of the Fifth Amendment: whether an action that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it.

The Clause requires the government to pay “just compensation” any time it “takes” private property. In its 1978 decision in the Penn Central case, the Supreme Court ruled that whether regulatory restrictions on property rights amount to a taking depends on their impact on the “parcel as a whole.” If the regulation affects only a small part of the parcel or has little impact on its overall value and use, it probably will not be ruled a taking, and no compensation is required. In Murr, a Wisconsin court ruled that the relevant parcel includes not only the one actually impacted by the regulation, but contiguous property the owned by the same landowner. As we explain in our brief, this approach is at odds with the text and original meaning of the Takings Clause, and seriously endangers property rights.

This is a study of the Case of Josiah Philips, a militant loyalist who led a terror campaign at the opening of the Revolutionary War and was attainted by an act of the Virginia General Assembly in 1778. In his edition of Blackstone’s Commentaries, St. George Tucker asserted that judges on Virginia’s General Court had refused to enforce the attainder. It has long been thought that Tucker’s claim was false, since Philips was captured before the end of the grace period in the act of attainder.

Here I return to the Philips sources from a new perspective, reinvigorate Tucker’s claims, and show how the case continues to be of interest. As I read it, the case is centrally concerned with a constitutional dispute over the role of the general assembly during wartime. In particular, Philips's treatment by the Virginia General Assembly exposed a disagreement about the proper scope of residual judicial powers in a republican assembly. Thomas Jefferson saw the assembly as the proper institutional repository of summary legal processes in wartime, deriving from the king’s obligation to do justice and to cure failures in judicial forms of process. Jefferson was opposed by, among others, Edmund Randolph, who was concerned about the corrupting effect of summary procedures in the assembly on ordinary forms of civil justice, as well as resulting violations of the rights of prisoners under the customary law of war. Although we cannot know for certain, there are reasons to suspect that Virginia judges refused to enforce the provision of the act of attainder requiring that Philips be tried for treason in a court of law if he surrendered before the end of the grace period. Treason was an offense that could only be committed by one who owed the sovereign allegiance, and there were two compelling reasons to conclude that Philips did not owe Virginia allegiance: he did not obtain any protection from the Virginia government (as he resided in an ungoverned area of the state), and he had allegedly accepted a military commission from the British government, making him an enemy belligerent.

When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment's guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

Solomon discovers the wellspring in our revolutionary past for today's satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

04/25/2016

The Obama administration has been writing letters to all 50 state governors, urging them to reconsider economic sanctions they have against Iran. Almost half of U.S. states have adopted such measures, which were explicitly authorized by statute in the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA).

“I would urge you to consider whether the implementation of the JCPOA, which verifiably ensures that Iran’s nuclear program is and will remain exclusively peaceful, addresses the underlying concerns with Iran articulated in your state’s law,” one of the letters stated.

The question is whether the administration will argue that the state laws are preempted by the JCPOA (that is, the Iran nuclear deal, or Joint Comprehensive Plan of Action). The answer should be (as Professor Kontorovich says) that the state laws are not preempted because the JCPOA is a nonbinding agreement, not a treaty, and so is not included in supreme law under the Article VI of the Constitution.

The matter is complicated, however, by the Supreme Court's decision in American Insurance Association v. Garamendi, which held on somewhat similar facts that a state law was preempted because it conflicted with a presidential policy expressed in an executive agreement. (I have written a couple of articles that are very critical of Garamendi [in which I served as one of the counsel for the state] -- see here and here.)

The present situation with Iran is a little different from Garamendi, and more favorable to the states. First, as Professor Kontorovich's post notes, the state laws are specifically authorized by Congress, which was not the case in Garamendi. Second, the presidential policy in Garamendi was expressed in an executive agreement, not a nonbinding agreement, and some executive agreements (but not nonbinding agreements) have been given preemptive effect by the Supreme Court despite the plain text of Article VI. Third, as Professor Kontorovich also notes later in his post, the Court's post-Garamendi decision in Medellin v. Texas took a very negative view of preemption by unilateral executive acts. Medellin said (rightly, as I say here) that according them preemptive effect would make the president a lawmaker, contrary to the Constitution's basic separation of powers. Medellin also described Garamendi and related cases on executive agreements very narrowly as involving claims settlements, which the Court seemed to regard as a constitutionally distinct category. (The JCPOA is not a settlement agreement).

So I agree with Professor Kontorovich: if the administration wants to make a case of it, bring it on! The states are on very strong ground.

A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic.

The Constitution of the United States begins with the words: “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution.

Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority.

In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.

Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.

Jack M. Balkin (Yale Law School) has posted a response, Which Republican Constitution? (Constitutional Commentary, 2016, forthcoming), on SSRN. Here is the abstract:

Randy Barnett argues that the American political tradition, understood in its best light, features a "Republican Constitution." But Barnett's version of "republicanism" has relatively little to do with the historical tradition of republicanism, a tradition that celebrates the common good; seeks to inculcate civic virtue; opposes aristocracy, oligarchy, and corruption; understands liberty not as mere negative freedom but as non-domination; connects civil rights to civic duties; and demands a government which derives its powers from and is ultimately responsive to the great body of the people.

Instead, Barnett's "Republican Constitution" is far closer to what most historians of the Founding would regard as the opposite or complement of the republican tradition. This is the tradition of natural rights liberalism, which begins with John Locke and evolves into classical liberalism in the nineteenth century. This tradition celebrates individual autonomy, views the state as organized to protect the natural rights of individuals, fears the tyranny of majorities, and treats liberty as a negative freedom — a protected space in which individuals, free from state control, may accumulate property and pursue happiness.

Although Barnett identifies his "Republican Constitution" with the Founders, it is really a sympathetic restatement of late nineteenth-century classical liberalism, which combined dual federalism with police powers jurisprudence. Conversely, his constructed foil, which he calls the "Democratic Constitution," is really a version of early twentieth-century progressivism which arises in opposition to the Gilded Age. Barnett's imagined opposition between "Republican" and "Democratic" visions of the Constitution at the Founding is really an idealized version of the struggle between classical liberalism and progressivism at the beginning of the twentieth century. This is an important clash of values, and it had momentous consequences for the way we understand constitutional law today. But it is not an adequate account of Founding-era thought.

By taking the word "republican" and pasting it onto the classical liberal tradition, Barnett has buried a truly important tradition in American constitutional thought — the actual historical republican tradition. This tradition is especially relevant today. Our contemporary politics is full of anxieties about republican themes: corruption, oligarchy, self-dealing, and lack of devotion to the public good. Barnett's classical liberalism is too thin to meet these contemporary concerns. By insisting that the central if not sole purpose of government is to protect natural rights — including, most prominently, the right to acquire and accumulate property — his account seems to talk past what concerns many people today about our political and constitutional system, not only on the left, but also on the right. It actually disables us from focusing on the important connections between democracy and political economy that the historical theory of republicanism was centrally concerned with.

The American constitutional tradition, understood in its best sense, has always drawn on elements of both the republican and liberal traditions, and applied them to the problems and circumstances of the age. It has employed the best parts of each tradition to critique and transcend the blindnesses and limitations of the other. That is as true of the founding period as it is of the present. No reconstruction of the American constitutional tradition can afford to discard one-half of this dialectic.

Professor Barnett briefly sketches a reply to Professor Balkin here. At Legal Theory Blog, Larry Solum also has some thoughts, including this:

One way to characterize Barnett's project is that Barnett is engaged in metalinguistic negotiation, proposing a conception of "republican constitutionalism" for today that would stand in opposition to the progressive "democratic constitutionalism" that is favored by many contemporary constitutional scholars who are associated with the contemporary Democratic Party.

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination. In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves. The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves. Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric. Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force. Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment. First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse. Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved. This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.

Some readers of my recent Reason op ed arguing that, under the original meaning of the Constitution, Congress had no general power over immigration, have written to me, pointing to the Migration or Importation Clause, as evidence to the contrary. Some modern advocates of broad congressional power over immigration also cite it to support their position. But, at least under the original meaning of the Constitution, it does not.

I generally agree with the ensuing (extended) argument, though I think it might be stated more simply. Saying that Congress cannot regulate migration prior to 1808 doesn't imply that Congress has full power to regulate migration; it only implies that Congress has some power to regulate migration (which can be exercised after 1808). Congress appears to have some power to regulate migration through its foreign commerce power, because (I would say) it can prohibit or limit the ability of ships operating in foreign commerce to sell passages to migrants. Thus it might be the case that Congress does not have power to regulate some migrants (e.g., those crossing by foot without assistance). Or at least, no having this power is still consistent with the migration clause. (I think it might be located elsewhere, however).

Methods of the New Originalism help us understand what sort of text the Constitution was understood to be when it was adopted. The text refers to itself, and so inquiries into the original understanding of the self-referential phrase “this Constitution” may illuminate the character of the document when it was ratified. Evidence of the usage of the time leads to the unsurprising conclusion that the Constitution of 1787-1789 was understood to be an account of a social compact — a political act — authorizing a new central government. In the original understanding, the Constitution authorized the creation of common-law courts. Judges and justices took their oaths, not to a document or a text, but to the federal, republican form and character (the “constitution”) of the government, and the truths on which it was founded. Judges reviewing the acts of political institutions were to be guided in their decisions, not by turning the aphoristic text of the Constitution into enforceable rules, but by judicial precedents and the maxims of justice and equality implicit in the structure and text of the Constitution, maxims expressed more fully in state constitutions and the Declaration of Independence. This is all familiar history, but it contradicts a premise of the New Originalism, an assumption that the Constitution was an enactment like a statute or contract, a text that judges must apply today according to its fixed terms to resolve disputes. Amendments to the Constitution were enacted as legislation and some, particularly the Fourteenth Amendment, were expected to be interpreted and applied like statutes, but the original Constitution of 1787-1789 was not understood in that way.

04/21/2016

Over at the Liberty Law Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists. Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution? This is a difficult question. Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem. Relying on this perspective, Smith argues for what he calls a strategic originalism. I respond to Smith’s argument here.

I have also thought about strategic considerations. I discuss one strategy for promoting originalism in my response to Smith:

Perhaps the biggest obstacle to securing support for originalism derives from the differing views of this interpretive approach from the Right and the Left. On the Right, originalism is seen as a constraint on judges’ imposing their values on the nation through judicial decisions. . . [Those] on the Left does not see originalism as a protection against values imposed by those who disagree with them.

This Leftwing view of originalism is in part the result of the principles advocated by Rightwing justices. Justices on the Right state that they will enforce the Constitution’s original meaning, not their own conservative or libertarian values. As a result, people on the Left do not fear Rightwing justices claiming to impose their own values.

But imagine if Rightwing justices sought to impose their own values on the Constitution—if, for example, conservative justices sought to prohibit abortion nationwide through constitutional interpretation rather than simply arguing that the Constitution permitted the states to decide the question. In this situation, the Left . . . would have to worry about judicial imposition of the Rightwing political agenda.

Under those circumstances, the Left might actually view the Constitution’s original meaning as protection, just as the Right does now.

How then might the Right get the Left to view originalism as protection?

An effective strategy from the Right might then seem to require that the Rightwing justices threaten to engage in judicial activism unless the Leftwing justices choose to follow the original meaning.

One possible way for the Rightwing justices to carry out their threat is by announcing in their dissent to the nonoriginalist decision that they will henceforth interpret this constitutional provision in a nonoriginalist way. If the liberal justices adopt the originalist interpretation of this provision in the future, however, then the Rightwing justice will conform to the original meaning as well.

While this would have some benefits, ultimately I recommend against this strategic approach:

It seems unprincipled for originalists not to follow the original meaning simply because nonoriginalists do not follow it. One of the most powerful advantages that originalists have is that they appear to be principled—they are seeking to consistently follow an intuitively attractive theory. If they behaved in an unprincipled way and pursued their own values, they would lose much of their appeal.

It is true that the originalists could argue that they are simply responding to the nonoriginalists’ behavior, and doing so in order to promote originalism. But I do not think this argument would be terribly persuasive. Instead of pursuing originalism, the originalists would now be pursuing nonoriginalism part of the time, which is a problematic way of promoting originalism. And it is by no means clear that the Constitution’s original meaning permits them to engage in this strategy.

In addition to Smith’s essay and my response, there is also the interesting response by the always engaging Gordon Lloyd and a soon to be posted response by Mike Greve.